Barham v. Holland

• Decision Date: 24 September 1919
• Docket Number: 119.
• Citation: 100 S.E. 186,178 N.C. 104
• Parties: BARHAM ET AL. v. HOLLAND ET AL.
• Court: North Carolina Supreme Court

100 S.E. 186

178 N.C. 104

BARHAM ET AL. v. HOLLAND ET AL.

No. 119.

Supreme Court of North Carolina

September 24, 1919

Appeal from Superior Court, Harnett County; Kerr, Judge.

Proceeding by Hettie Barham and others against Matt Holland and others. Judgment for defendants and plaintiffs except and appeal. New trial.

In proceedings by heirs for partition of ancestor's land heirs are not required to prove that ancestor died intestate the presumption being that ancestor did not leave a will.

J. R Baggett, of Lillington, and Clifford & Townsend, of Dunn, for appellants.

E. F Young, of Dunn, and F. T. Dupree, of Angier, for appellees.

HOKE J.

There were facts in evidence tending to show that the property in controversy belonged to one Lem Holland; that in 1882 he left the state, going to South Carolina, and that no message had been received from him by any of his family or others "since about a year or two after he left the state, and the reputation in the family was that he was dead," and plaintiffs and defendants are his heirs at law, brothers and sisters of the deceased or their children; that just before leaving Lem Holland, the owner, placed the property in possession of his brother, Jim Holland, to hold the same for the owner, and not long after Jim died, leaving his widow, Lucy, and several of their children in possession, and they or some of them had continued to live on the place till institution of the suit.

There was testimony for defendant tending to show that Lem Holland placed his brother, Jim, and his wife on the place as owners, and that, since Jim's death, his widow, Lucy, who sets up the plea of sole seizin, had continued to occupy and possess the property, and that such possession was adverse and in the assertion of ownership; that she was the sole owner, as alleged in her plea. On the issues thus raised, his honor, among other things, charged the jury:

"The burden, then, is upon the plaintiffs to satisfy you by the evidence, and by its greater weight, that Lem Holland is dead, and that he died seized and possessed of this piece of land; second, that he died intestate, that is to say, that he did not leave a will and give this land to anybody else; third, that the parties to this action are his heirs at law; that is, that they are the ones who are entitled to his property in the event that he did die owning this property, and that he did die without any will conveying it to somebody else."

And further:

"In order that you should answer the issue 'Yes,' it is essential, as I said, that you should find all of these facts to exist from the evidence, by its greater weight, as I have defined greater

...